Patent Act (R.S.C., 1985, c. P-4)

Act current to 2017-06-19 and last amended on 2016-06-24. Previous Versions

Marginal note:Invention must not be obvious

 The subject-matter defined by a claim in an application for a patent in Canada must be subject-matter that would not have been obvious on the claim date to a person skilled in the art or science to which it pertains, having regard to

  • (a) information disclosed more than one year before the filing date by the applicant, or by a person who obtained knowledge, directly or indirectly, from the applicant in such a manner that the information became available to the public in Canada or elsewhere; and

  • (b) information disclosed before the claim date by a person not mentioned in paragraph (a) in such a manner that the information became available to the public in Canada or elsewhere.

  • 1993, c. 15, s. 33.
Marginal note:Request for priority
  •  (1) For the purposes of sections 28.1, 28.2 and 78.3, an applicant for a patent in Canada may request priority in respect of the application on the basis of one or more previously regularly filed applications.

  • Marginal note:Requirements governing request

    (2) The request for priority must be made in accordance with the regulations and the applicant must inform the Commissioner of the filing date, country or office of filing and number of each previously regularly filed application on which the request is based.

  • Marginal note:Withdrawal of request

    (3) An applicant may, in accordance with the regulations, withdraw a request for priority, either entirely or with respect to one or more previously regularly filed applications.

  • Marginal note:Multiple previously regularly filed applications

    (4) Where two or more applications have been previously regularly filed as described in paragraph 28.1(1)(a), subparagraph 28.2(1)(d)(i) or paragraph 78.3(1)(a) or (2)(a), either in the same country or in different countries,

    • (a) paragraph 28.1(1)(b), subparagraph 28.2(1)(d)(iii) or paragraph 78.3(1)(b) or (2)(b), as the case may be, shall be applied using the earliest filing date of the previously regularly filed applications; and

    • (b) subsection 28.1(2), subparagraph 28.2(1)(d)(ii) or paragraph 78.3(1)(d) or (2)(d), as the case may be, shall be applied using the earliest filing date of the previously regularly filed applications on the basis of which a request for priority is made.

  • Marginal note:Withdrawal, etc., of previously regularly filed applications

    (5) A previously regularly filed application mentioned in section 28.1 or 28.2 or subsection 78.3(1) or (2) shall, for the purposes of that section or subsection, be considered never to have been filed if

    • (a) it was filed more than twelve months before the filing date of

      • (i) the pending application, in the case of section 28.1,

      • (ii) the co-pending application, in the case of section 28.2,

      • (iii) the later application, in the case of subsection 78.3(1), or

      • (iv) the earlier application, in the case of subsection 78.3(2);

    • (b) before the filing date referred to in paragraph (a), another application

      • (i) is filed by the person who filed the previously regularly filed application or by the agent, legal representative or predecessor in title of that person,

      • (ii) is filed in or for the country where the previously regularly filed application was filed, and

      • (iii) discloses the subject-matter defined by the claim in the application mentioned in paragraph (a); and

    • (c) on the filing date of the other application mentioned in paragraph (b) or, if there is more than one such application, on the earliest of their filing dates, the previously regularly filed application

      • (i) has been withdrawn, abandoned or refused without having been opened to public inspection and without leaving any rights outstanding, and

      • (ii) has not served as a basis for a request for priority in any country, including Canada.

  • 1993, c. 15, s. 33;
  • 2001, c. 34, s. 63.
Marginal note:Non-resident applicants
  •  (1) An applicant for a patent who does not appear to reside or carry on business at a specified address in Canada shall, on the filing date of the application, appoint as a representative a person or firm residing or carrying on business at a specified address in Canada.

  • Marginal note:Nominee deemed representative

    (2) Subject to this section, a nominee of an applicant shall be deemed to be the representative for all purposes of this Act, including the service of any proceedings taken under it, of the applicant and of any patentee of a patent issued on his application who does not appear to reside or carry on business at a specified address in Canada, and shall be recorded as such by the Commissioner.

  • Marginal note:New representatives

    (3) An applicant for a patent or a patentee

    • (a) may, by giving notice to the Commissioner, appoint a new representative in place of the latest recorded representative, or may give notice to the Commissioner of a change in the address of the latest recorded representative; and

    • (b) shall so appoint a new representative or supply a new and correct address of the latest recorded representative on receipt of a request of the Commissioner stating that the latest recorded representative has died or that a letter addressed to the latest recorded representative at the latest recorded address and sent by ordinary mail has been returned undelivered.

  • Marginal note:Where no new appointment is made or no new address supplied

    (4) Where the Commissioner makes a request under paragraph (3)(b) and no new appointment is made or no new and correct address is supplied by the applicant or patentee within three months, the Federal Court or the Commissioner may dispose of any proceedings under this Act without requiring service on the applicant or patentee of any process in the proceedings.

  • Marginal note:When fee payable

    (5) No fee is payable on the appointment of a new representative or the supply of a new and correct address, unless that appointment or supply follows a request by the Commissioner under subsection (3), in which case the prescribed fee is payable.

  • R.S., 1985, c. P-4, s. 29;
  • 1993, c. 15, s. 34.

 [Repealed, 1993, c. 15, s. 35]

Joint Applications

Marginal note:Effect of refusal of a joint inventor to proceed
  •  (1) Where an invention is made by two or more inventors and one of them refuses to make application for a patent or his whereabouts cannot be ascertained after diligent inquiry, the other inventors or their legal representatives may make application, and a patent may be granted in the name of the inventors who make the application, on satisfying the Commissioner that the joint inventor has refused to make application or that his whereabouts cannot be ascertained after diligent inquiry.

  • Marginal note:Powers of Commissioner

    (2) In any case where

    • (a) an applicant has agreed in writing to assign a patent, when granted, to another person or to a joint applicant and refuses to proceed with the application, or

    • (b) disputes arise between joint applicants with respect to proceeding with an application,

    the Commissioner, on proof of the agreement to his satisfaction, or if satisfied that one or more of the joint applicants ought to be allowed to proceed alone, may allow that other person or joint applicant to proceed with the application, and may grant a patent to him in such manner that all persons interested are entitled to be heard before the Commissioner after such notice as he may deem requisite and sufficient.

  • Marginal note:Procedure when one joint applicant retires

    (3) Where an application is filed by joint applicants and it subsequently appears that one or more of them has had no part in the invention, the prosecution of the application may be carried on by the remaining applicant or applicants on satisfying the Commissioner by affidavit that the remaining applicant or applicants is or are the sole inventor or inventors.

  • Marginal note:Joining applicants

    (4) Where an application is filed by one or more applicants and it subsequently appears that one or more further applicants should have been joined, the further applicant or applicants may be joined on satisfying the Commissioner that he or they should be so joined, and that the omission of the further applicant or applicants had been by inadvertence or mistake and was not for the purpose of delay.

  • Marginal note:To whom granted

    (5) Subject to this section, in cases of joint applications, the patent shall be granted in the names of all the applicants.

  • Marginal note:Appeal

    (6) An appeal lies to the Federal Court from the decision of the Commissioner under this section.

  • R.S., c. P-4, s. 33;
  • R.S., c. 10(2nd Supp.), s. 64.
 
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